The Cost of Freedom -- Civil Liberties, Security and the USA PATRIOT ACT

The segments included in this interview* excerpt were recorded in October 2003, as part of The Cost of Freedom - Civil Liberties, Security and the USA PATRIOT ACT, a look at the history of civil liberties in America and the controversy surrounding the USA PATRIOT ACT. The documentary is a co-production of The Duncan Entertainment Group with Iowa Public Television. Peter Erlinder is Professor of Constitutional and Criminal Law at William Mitchell College of Law. He is former president of the National Lawyers Guild.

(* This transcript has been edited due to length.)

When you look at the course of history and today's reaction to the Patriot Act what lessons can be learned from American history?
Well I think that its a truism that at times of threat or national stress its quite normal for government to assert power and for people to feel comfortable giving those powers to the government because they feel insecure. That really defined what happened during the Alien and Sedition period in the seventeen nineties; we saw it again in the Civil War where the right to habeas corpus was suspended and military tribunals were used in places where the civilian courts had ceased to function. We see it again in other times in history like in World War One where the opposition to the war resulted in people being arrested for what seemed to be minor issues today--the distribution of leaflets that urged people to resist the draft. We've seen it in the period of the Palmer raids during the nineteen twenties when the threat of the bolshevism of the Soviet Union was viewed as a threat to the society. We've seen it in the World War Two when Japanese people were interned in great quantities and great numbers and we also see it during the anticommunist period and the McCarthy era. Time after time the question of civil liberties has been challenged during periods of threat and when we've looked back at those periods very often we've been embarrassed by the results of the diminution of civil liberties during those periods and we've then had to struggle to reestablish the normalcy of civil liberties as a reaction to those periods of overreaction in our history. I think that we are going through a period that is similar to those at this point as well. And in some ways its even a greater period of concern because the proposals, not only the Patriot Act but in the use of administrative power by the executive branch, are on a scale that are much broader that those that were asserted before, even during times that the Soviet Union threatened the existence of the United States, even when Japan and Germany presented a threat on a world wide scale, the claims of executive power that we are seeing during this period of the war on terrorism are beyond those claims that we have seen before.

So what exactly is different under the Patriot Act?
Well I guess the first point to make is that the Patriot Act didn't just pull together things that were already on the books. The Patriot Act and the administrative actions that have existed since that time have actually proposed a fundamental change in the structure of government. And it certainly would not be obvious to ordinary people that this sort of fundamental change was going on around them. The reality is that even at other times in our history for example during the period of time that the Japanese were interned, most people weren't effected by that. Many weren't even aware that it had happened. And so the idea that the general population may not be thinking about the long-term implications of what is going on is completely to be expected. And also there is also a general tendency I think that it was probably expressed best by Pastor Niemöller: "At first they came for the Communists I wasn't a Communist. Then they came for the Jews, I wasn't a Jew. Then they came for the Catholics, I wasn't a Catholic. Then they came for me and there was no one else no one else to object." And that's a generalized condition that until people feel the effects of these changes in their personal lives they are disinclined to believe or to understand first of all how important these changes are, or to believe that they might even have any relevance to them. And so that's a normal occurrence. But perhaps the best way I can explain this and perhaps the single most dramatic difference that I think that we have to acknowledge has happened is the president of the United States has claimed the power to execute people without judicial review. And that is a step that is beyond any claim that has ever been made in the history of the United States before. The way it is being done is by claiming that military tribunals that are not governed by international law, that have no review in civilian courts, can be set up by the president, that those military tribunals can carry out the death sentence and that the only review of that decision would be through the president himself. And that is an exercise in power that speaks of the power of a tyrant or a sovereign who is beyond control or beyond review. The other provisions, the Patriot Act and other changes are more subtle but they are all directed towards the centralization of power and the use of unreviewed discretion by the executive branch of government. And we could talk about dozens of examples of that. But the claim that the president of the United States can carry out executions without review in the civilian courts is an extraordinary claim to power.

It seems what you are describing is the return of the imperial presidency and a return to ideas that the founding fathers reacted against. Is that true?Well I think that there's an example that struck me when I listened to the debates in parliament as to whether Britain was going to support the US war effort. It was quite clear that parliament had no role in the final decision because the sovereign in England has the power to declare war that is delegated to the prime minister and so there is no legislative component in the declaration of war in England. Our constitutional structure is intended to change that entirely and the declaration of war is something that the congress must uh must pass. It can't be done by the president alone. However, what has happened is through a misuse of congressional power to declare war and the encroachment of that power by asking for informal approval for use of military power we've seen a situation where that difference between the sovereign's absolute ability to declare war in England and the congress' to declare war in the United States has been merged so that the separation of the executive from the power to declare war is much less distinct now than it appeared to be at the time that the constitution was created.

In the area of immigration law, which is an area which is typically given over to a great deal of executive branch discretion, the Patriot Act has allowed the Attorney General, part of the executive branch, to make decisions about who is a national security risk and to incarcerate people without judicial review. The claim has also been made that the executive branch has the power to hold hearings in secret that neither the press nor congress nor anyone can observe. That the declaration that someone is an enemy combatant for example, which is an executive branch decision that has no definition in constitutional law, that has never been authorized by congress, can be used to arrest and incarcerate citizens indefinitely based purely on the presidential decree.

Also the Patriot Act has reduced the level of judicial oversight of investigations carried out by the executive branch. It is no longer necessary for there to be probable cause that a crime has been committed to be able to engage in things like electronic eavesdropping, secret searches and even the infiltration of and surveillance of perfectly legal groups. Prior to the Patriot Act because of the excesses of the imperial presidency of the Nixon era, the FBI's investigations for example were limited. Those limitations have been removed so that the FBI and the executive branch is now claiming the power to play a surveillance role to oversee or to investigate any organization it chooses including churches, groups of a civil nature, mosques, people who are organizing for political purposes, not because a crime is being committed but merely because the government wants that information. So what we are seeing is the legalization of many of the aspects of the Nixon administration that had previously been declared either illegal or unconstitutional.

Can you talk about the argument that maybe the ends justify the means both now and at other points in American history?
The idea that from the governmental standpoint that the ends justify the means is precisely the reason that the Bill of Rights was necessary and why the English Bill of Rights before that was necessary. The argument on the part of the sovereign or the government that that its necessity that drives the exercise of extreme power or extraordinary power is the claim to which the Bill of Rights is directed. We saw for example during the Civil War that the extraordinary period that existed then resulted in Lincoln and even Congress agreeing that opposition to the war should be punished, people should be locked up for being traitors to the northern cause, that military tribunals could be used. We saw the reaction to that however quite quickly. The Supreme Court said that it was not proper to set military tribunals in places where the civilian courts were functioning, that there is an exception but that exception must be narrowed and must be tailored. Even the Constitution itself that talks about the writ of habeas corpus being able to be suspended in some circumstances and the care with which it defines the way in which the war can be declared makes clear that there are times when the ends justify the means. But the reason that we have a Constitution and a Bill of Rights is to narrowly define specifically what those are and to make clear that the exceptions don't become so broad and so well entrenched that they overcome the rules that govern society generally. In the case of the Japanese internment for example the ends justify the means was used as an argument at that time as well. And its interesting to see that even today the Supreme Court has never declared that the internment of the Japanese was unconstitutional even though reparations have been paid and its been recognized that that was an abuse of government power at that time.

The difficulty that we have through the history of the two hundred years of our republic has been trying to draw very careful lines about when these exceptions should apply. We're in one of those periods again and it seems to me that what our history has shown us is the government has an important obligation to justify the use of extraordinary power before that power is granted. Unfortunately because of the reaction and the fear after 9-11 it was possible to use that argument--to claim powers that are so broad --that we have reason to question whether the balance of powers in which government is supposed to be limited as a fundamental tenant of our governmental system whether that still is a concept in which we in which we believe as a people. The thing that is most difficult about this current period is the exceptionalism that is being claimed is based on the idea that the war on terror and the war against evil is a war that will last forever. And when we put together the idea of the ends justifying the means together with an exceptional period that has no end, what we have essentially done is establish the philosophical basis for eliminating limited government. And those two ideas are extraordinarily dangerous ideas in historical terms because exceptions are not indefinite. Exceptions are not lasting forever. There has to be an end to war in order to define it as an exception. What we have defined for us is a war without end which means not an exception to a general rule but a changing of the general rule. And that I think is in a claim that is new and one that exceeds those claim of the ends justifying the means that we've seen previously.

Can you talk to the similarities between the Cold War period and the War on Terrorism?
I think that that those are apt comparisons in the sense that you use them because its essentially an unofficial war that is of seemingly long duration perhaps of unlimited duration. The cold war however actually presented some threats that were in some ways more direct than the threat of the war on terrorism. The cold war was based in competing philosophical systems and economic systems. The threat of communism and socialism was actually a philosophical principal that had some support in the west, a much greater level of support than Islam is likely to raise in Europe or in on this side of the Atlantic. In addition it was supported by an enormous military power including nuclear weapons on a broad scale that really did threaten the potential annihilation of not only the United States, but also conceivably the whole world. So in that sense the threat of the cold war was actually much greater than the threat presented by terrorism today. On the other hand, because the cold war was a war that was identified as a conflict between nation states it fit more easily in to the idea of international law that has governed international relations for the last several hundred years. And because the war against terrorism is more defuse its harder to identify who the combatants are. It presents particular challenges that make clear that the response is probably a police response, a law enforcement response on an international scale as well as domestic scale, rather than a real war in the way we have understood it in the past which is nation states going against each other. I think it's important to recognize that even though the cold war presented the potential of annihilation on a world scale, that the claims of presidential power and executive power that we are seeing now were not made at that time and that use of executive branch power was actually more limited during the entire period of the cold war, although there were aspects like the McCarthy period that have some similarity. We are seeing claims of executive power that far exceed anything that occurred during the cold war.

During the cold war you had hysteria, but you also had genuine threats. Likewise the same situation exists today. So what is the appropriate balance between security and civil liberties?
Happily we have a Bill of Rights and a Constitution that is supposed to define that for us and I'm certainly not wise enough to be able to draw that line myself. But I think that I can suggest the process by which that line might be drawn. And that would suggest that until the government can demonstrate an absolute need for diverting from normal exercises of government power and the normal of balance of powers that we have in our system that those changes should not be made. And the changes should be made carefully and deliberately recognizing that they are exceptions before we allow the exceptions to occur. What's happened here I think at least since 9-11 is that decisions have been made in haste. We were told for example that it was necessary to enact the Patriot Act because it was not possible without the powers that the government had before to undertake investigations of terrorists or to prevent 9-11 from occurring. What we have since learned from revelations within the FBI as well as other governmental agencies is that as a matter of fact there was a great deal that could have been done with the rules that existed before and hadn't been done. Not because the additional powers were necessary but that the powers that had existed before were not used in an effective fashion. And it seems to me that unless there is a demonstrated necessity for changing the basic structure of government because the threat is so large that those changes should not be made. Until this point there really has not been a demonstration either that the changes are necessary or that they've been used particularly well. And it seems to me that government has a much greater obligation than we've imposed on this government to make their case. What we've had is claims that have played into the fear that is understandable but it has not been a thoughtful application of new powers.

Please explain the checks and balances put in place to prevent to much executive power.
It's an old saying that preexist our country I imagine that "power corrupts and absolute power corrupts absolutely." A person charged with the responsibility of managing a country and responding to threats to that country to protect its people would understandably be driven to accumulate the power that that person thought was necessary to accomplish those tasks. And to the extent that one takes that responsibility seriously it's a natural desire. But it's that natural desire that led I think the founding fathers to recognize that human beings require limitations on their power in order to make certain that government could function in a way that did not allow tyranny to develop because if there's a good emperor or a bad emperor may not be as important as the fact that there's an emperor at all. And of course we might prefer the good emperor to the bad emperor, but our system of government is really set up with the idea that an imperial presidency is contrary to the long-term interests of both democracy and the republic.